The woman, Charlene Whalen of Bangor, Maine, sued Dr. Steven Weisberger who treated her for chronic back pain. The Complaint alleged that the dosage of methadone Dr. Weisberger prescribed was too high, which caused brain damage from oxygen deprivation after she stopped breathing while sleeping.

About 48 hours after she was prescribed Methadone, Whalen’s fiancé found her unresponsive in the middle of the night. She was eventually revived, but the resulting deprivation of oxygen resulted in brain damage that affected her ability to multitask and perform tasks that would allow her to work.

The Plaintiff’s experts opined that the amount of methadone Plaintiff was prescribed was eight times the amount recommended by experts in the field. The Defense countered that the dosage was within an appropriate range.

The Defense contended that the Plaintiff never alerted the pharmacist who filled the methadone prescription that she had breathing problems and suffered sleep apnea. Additionally, the Defense argued that Plaintiff had no future lost income, since she never intended to return to work.

The jury deliberated for less than two hours.
If you, or a loved one, has been negatively impacted by overprescription of medicaton, contact the Brassel, Alexander & Rice for a free consultation.

In Murray v. Transcare Maryland, TransCare argued that as a commercial ambulance company it was entitled to immunity based on the Maryland Good Samaritan State and the Maryland Fire and Rescue Act. The Court of Special Appeals panel held that although Maryland State law protects municipal firefighter and rescue operators from liability, both the Maryland Fire and Rescue Act and the Maryland Good Samaritan Statute, do not protect commercial ambulance services, such as the services provided by TransCare, from liability. The Court’s decision allows the Plaintiff to pursue a claim against TransCare.

The events at issue occurred on November 15, 2007, when an air transport company was required to transport a child from Memorial Hospital at Easton to University of Maryland Medical System’s (UMMS) Pediatric Intensive Care Unit, because the Easton hospital was not equipped to manage an intubated child. TransCare employed a paramedic on board the transport helicopter who failed to find an oxygen mask after the airway of the child, Bryson Murray, became blocked by a breathing tube.

Unable to find an oxygen mask on board, the air transport required an emergency landing before a mask could be found, and by that time the child had suffered permanent brain damage.
In the Circuit Court, TransCare argued in its Motion for Summary Judgment that it was immune under the Maryland Fire and Rescue Act, §5-604 of the Judicial Proceedings Article. The Maryland fire and rescue act provides protection for liability of fire and rescue companies unless they are found to have engaged in willful or grossly negligent acts. The Court of Special Appeals held that both the plain language and the legislative intent of the statute indicated that commercial ambulance companies were not entitled to protection under the Maryland Fire and Rescue Act.

TransCare also argued that it met the three basic requirements of the Good Samaritan Act, in that (1) there was no act or omission of gross negligence, (2) the act or assistance was provided without fee or other compensation, and (3) the assistance or medical care was provided in transit to a medical facility.

The Court of Special Appeals, however, also rejected this claim, as the Maryland Good Samaritan Act was intended to protect people, not companies.

TransCare now has the option to seek a writ of certiorari to the Maryland Court of Appeals, or proceed to trial in the Talbot County Circuit Court.

If you or a loved one has been the victim of medical malpractice, contact the Brassel, Alexander & Rice for a free consultation.

]]>26Maryland Court of Appeals upholds multi-million dollar medical malpractice judgmenthttps://www.marylandinjuryattorneysblog.com/2012/01/court-of-appeals-upholds-5-mil.html
Tue, 31 Jan 2012 10:13:52 +0000http://www.marylandinjuryattorneysblog.com/2012/01/court-of-appeals-upholds-5-mil.html
The Maryland Court of Appeals last Friday upheld a Baltimore County trial court’s denial of a physician’s motion for a new trial, after a jury awarded $13 million to a family whose child was born with severe cerebral palsy. The jury found that the physician breached his duty to obtain the mother’s informed consent to treatment when he treated her for a partial placental abruption, by failing to inform her of the risks and available alternative treatments related to changes in her pregnancy.

The case Spangler v. McQuitty et al, marked the second time the Court of Appeals examined the same set of facts. In 2009, the Court of Appeals held in McQuitty I that a patient may bring an informed consent claim in the absence of a battery or affirmative violation of the patient’s physicial integrity because a practitioner’s duty to inform a patient of material information that the practitioner knows or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to submit to a particular medical treatment or procedure.

In the absence of such statute addressing cessation of future medical damages, the Court joined several others states in deciding that “finality is the valued norm.” In other words, the Court granted deference to the jury’s verdict, which was likely based on a projections based on Plaintiff’s life expectancy.

Among the other rejected motions advanced by Dr. Spangler, the Court of Appeals held as follows:

The Court rejected Dr. Spangler’s argument that McQuitty I substantively changed the law of informed consent in Maryland, thereby entitling him to a new trial. The Court found that there was no change in the Maryland common law, thereby affirming the trial Court’s rejection of his Motion for New Trial.

The Court rejected Dr. Spangler’s argument that a hospital that settled its claim was a joint tortfeasor. The hospital settled its claim, but the jury did not find that the hospital was a joint tortfeasor. The benefit to Dr. Spangler was that if the hospital was determined to be a joint tortfeasor, he would ordinarily be entitled to a dollar-for-dollar reduction of the settlement paid by the hospital

The Court rejected Dr. Spangler’s argument that the trial judge should have awarded post-judgment interest dating back to January 20, 2010, which is the date that the Court entered a judgment after McQuitty I was remanded to the Court. The trial court awarded post-judgment interest dating back to the initial judgment dated September 27, 2006, which the Court found was an exercise of the Court’s discretion.

If you have been affected by medical negligence, contact the Brassel, Alexander & Rice for a
free consultation.

]]>25Hospital found liable for botched surgery performed by medical residenthttps://www.marylandinjuryattorneysblog.com/2011/12/hospital-found-liable-for-botc.html
Thu, 08 Dec 2011 14:31:37 +0000http://www.marylandinjuryattorneysblog.com/2011/12/hospital-found-liable-for-botc.htmlA Michigan jury awarded a woman $2.5 million after she suffered a permanent injury as a result of a resident surgeon’s error during a medical procedure.

Surgery was necessary for the woman after she had suffered a miscarriage in which she lost her 14-week-old fetus. As a result, she underwent a dilation and curettage procedure. She alleged in her lawsuit that her OB/GYN informed her that the procedure was routine and that she would be home by lunch.

During the surgery, which was performed by a resident surgeon, the woman’s rectum and bowel were torn after her bowel snapped back after the resident grabbed a piece of bowel with ring forceps. Her lawsuit alleged that her doctor never made her aware that the resident performed the surgery.

After the surgery, the woman underwent an ileostomy, which is a procedure to create an opening in the skin to pass intestinal waste. She was also required to carry a bag which collects the waste for a period of three months.

As a result of the injury, she has suffered altered bowel patterns, pain and scarring.

At trial, she and her attorney argued that her OB/GYN failed to properly supervise the resident physician who performed the surgery.

Ultimately, the jury found the hospital that employed the surgeon and the resident liable for $2.5 million.

The Brassel, Alexander & Rice has skilled Maryland attorneys representing victims of medical malpractice. If you believe you or a family member has been the victim of another’s negligence, call the Brassel, Alexander & Rice for a free consultation.

]]>20Anesthesiologist pays $8.2 million for recommending former drug-abusing colleaguehttps://www.marylandinjuryattorneysblog.com/2011/11/anesthesiologist-pays-82-milli.html
Wed, 02 Nov 2011 14:27:51 +0000http://www.marylandinjuryattorneysblog.com/2011/11/anesthesiologist-pays-82-milli.htmlA Louisiana anesthesiologist who wrote a glowing recommendation on behalf of a fellow anesthesiologist to a hospital in Washington State, despite knowledge of the doctor’s habit of diverting Demerol from his patients, was ordered to pay $8.2 million to pay for the damages that resulted when the doctor and hospital was sued for medical malpractice.

According to a Report in Outpatient Surgery Magazine, Louisiana Anesthesia Associates (LAA) terminated Robert Lee Berry, MD, in 2001 over concerns that he had a problem with substance abuse. William J Preau III, MD was also a member of LAA and participated in the decision to terminate Berry. Even after this, however, Dr. Preau wrote a glowing recommendation to Kadlec Medical Center in Richland, Washington stating: “[Dr. Berry] is an excellent anesthesiologist. He is capable in all fields of anesthesia including OB, peds, C.V. and all regional blocks. I recommend him highly.”

Kadlec Medical Center hired Berry. One year later, Berry was under the influence, failed to properly administer anesthesia to a patient, and the patient fell into a permanent vegetative state. The patient’s family sued Dr. Berry and Kadlec medical center. The case was settled with Dr. Berry paying $1 million and the hospital paying $7.5 million.

Feeling misled by Dr. Preau’s letter, the hospital sought indemnity – repayment of their settlement and legal fees – by suing Dr. Preau and Louisiana Anesthesia Associates (LAA) for intentional misrepresentation, resulting in a new round of litigation in the United States District Court for the Eastern District of Louisiana.

The federal jury awarded $8.2 million to Kadlec for damages that resulted from its settlement with the patient and the medical damages, which was apportioned based on the comparative fault of Dr. Preau and Louisiana Anesthesia Associates. On appeal, however, the United States Court of Appeals for the Fifth Circuit reversed the judgment against LAA, because LAA provided only a neutral recommendation (i.e. a response only indicating that the former employee had been on its medical staff and does not vouch for his credentials). Moreover, the person who prepared LAA’s letter indicated that she did not know anything about Dr. Berry’s termination and other problems, which were kept confidential. Seefull text of the Appellate Court’s Decision.

Our Annapolis and Baltimore Medical Malpractice Attorneys have years of experience representing Plaintiffs whose children have been affected by catastrophic birth injuries. These injuries have a lasting emotional and financial impact on parents, as they must often pay for a lifetime of medical care and see their children subjected to pain and suffering.

The Oregon lawsuit alleges that due to the negligence of the defendants, the parents will watch both boys lose the ability to walk by their early teens and will ultimately die from the progressive condition.

The first son was born in 2003. The lawsuit alleges that the first son immediately showed developmental abnormalities after birth. Although the parents sought medical help, the son was not diagnosed with the condition until October 2010, which was two years after their third son was born. Their third son is also affected by the disease.

The suit alleges that the defendants failed to recognize the second son’s abnormalities and failed to diagnose him, and moreover failed to advise them of the likelihood of a subsequent child having the same condition.

Duchenne’s muscular dystrophy is a condition that affects one in 3,000 boys, which includes delays in walking, trouble going up stairs, frequent falls and large calf muscles. There is no known cure.

Cases like this are often difficult and sensitive, because such cases could send a negative message to children when they learn that their parents may wish that they were not born. Additionally, these cases might suggest that a child that is handicapped is less desirable than a non-handicapped child. These critiques overlook the emotional and painful impact these issues have on families.
Lawsuits involving birth injuries, depending on the jurisdiction, often include a cause of action for “Wrongful Birth” and/or “Wrongful Life.” Wrongful birth counts are brought by the parents for the damages resulting from the birth of a handicapped child. Wrongful life cases are claims brought by the child, who essentially alleges they would have preferred not to be born than born into a life of suffering. It seeks to recover for emotional pain and suffering of the child, as well as recompense for the medical and educational expenses incurred. Kassama v. Magat, 136 Md. App. 637, 665 (2001).

Although some states recognize claims for “Wrongful Life,” Maryland, along with most other states, do not recognize a “Wrongful Life” claim. Maryland does, however, recognize a claim for “Wrongful Birth.”

If you or a family member has been impacted by a birth injury due to the negligence of others, call the Brassel, Alexander & Rice for a free consultation.

The jury found the two doctors who conducted the procedure, Dr. Joseph Bilotta and Dr. William Koontz, liable for the full extent of the awarded damages. Meanwhile, the hospital and nurses involved in the case were held not liable.

All parties to the suit acknowledged that it was an extremely rare occurrence that the fetus was decapitated during birth. The doctors’ attorney argued to the jury that the baby would not have survived regardless of the doctors and nurses actions, because the pregnancy was only about 21 weeks in duration.

The Plaintiff’s attorney, however, argued that the mother was about 24 weeks into the pregnancy, where babies are potentially viable.

The Plaintiffs argued that the doctors failed to remove a cerclage, a device resembling a string, which is a surgical tool used to keep the Plaintiff’s cervix closed. When the fetus was being delivered, the string acted “as a noose” which caused the decapitation.

The doctor acknowledged that he initially tried to deliver the baby with the cerclage intact, but eventually removed it. But the allegation was that it was removed too late in the procedure.

The $1.4 million the jury awarded was to compensate the mother, Micheatria Donelson, for her pain and suffering. Her attorneys argued that she is now depressed, has panic attacks and is unable to sleep more than a few hours each night.

On a slightly less somber note, she is now the mother of a two-year-old daughter.
Traumatic birth injuries can have a life changing impact both on the victims and their families. Unfortunately for this mother, the baby did not survive. But in cases where the baby does survive, these cases involve planning for a lifetime of medical care.

If you or a loved one has been affected by a traumatic birth injury due to another’s negligence, contact the Brassel, Alexander & Rice for a free consultation.

]]>544Jury awards family $91.5 million for nursing home neglecthttps://www.marylandinjuryattorneysblog.com/2011/08/jury-awards-family-915-for-nur.html
Thu, 11 Aug 2011 10:33:19 +0000http://www.marylandinjuryattorneysblog.com/2011/08/jury-awards-family-915-for-nur.htmlA Kanawha County, West Virginia jury awarded an 87-year old woman’s family $91.5 million after finding that low staffing levels at a nursing home led to her death.

The substantial verdict was delivered after a two-week trial where Plaintiffs alleged that workers at Heartland of Charleston (W.V.) failed to feed and care for Dorothy Davis, who died of complications from dehydration after a three week stay at the facility.

The jury deliberated for two hours before awarding $11.5 million in compensatory damages and $80 million in punitive damages.

The testimony reflected that in the three week period Davis stayed at Heartland, she lost 15 pounds, she became unresponsive and suffered severe dehydration. She died one day after her transfer to a different hospital.

Plaintiffs alleged that Heartland lacked sufficient nurses on staff to care for the woman, which was supported by the testimony of former Heartland employees. In 2009, the nursing home had an employee turnover rate of 112 percent.

Heartland is owned by a parent corporation called Manorcare that has assets of $8 billion.

The nursing home defended on the grounds that the woman’s death certificate states that she died of Alzheimer’s, not dehydration and that staff did not breach the standard of care in the treatment of the woman.

Carlyle Group, a private equity firm that owns Manorcare, stated that it will appeal the verdict.
Should you or a loved one suffer an injury due to the negligence of nursing home or hospital, contact the Brassel, Alexander & Rice for a free consultation.

]]>542Tennessee legislature caps awards in civil caseshttps://www.marylandinjuryattorneysblog.com/2011/07/tennessee-legislature-caps-awa.html
Fri, 08 Jul 2011 12:08:46 +0000http://www.marylandinjuryattorneysblog.com/2011/07/tennessee-legislature-caps-awa.html
Tennessee became the latest state to enact a cap on non-economic damages when its Governor signed into law a so-called “tort reform” bill that limits damages such as pain and suffering.

Our Maryland attorneys have significant experience representing injured plaintiffs in personal injury cases including auto accidents and medical malpractice throughout the state of Maryland and the District of Columbia.

Tennessee’s law places a $750,000 cap on non-economic damages and limits punitive damages at twice the amount of compensatory damages or $500,000, whichever is greater. The bill lifts the cap if the defendant is found to have intended to cause bodily injury.

Maryland, by contrast, currently caps non-economic damages at $740,000, with no cap on punitive damages. In Maryland, however, proving punitive damages requires proof of “actual malice.” For this reason, awards of punitive damages in Maryland are rare.

Compensatory damages, including non-economic damages, are designed to make a Plaintiff whole. Punitive damages are designed to punish the wrongdoer.

A recent HBO documentary titled, “Hot Coffee” explored the human effects of caps on damages. Four states, including Nebraska and Virginia, however, have a cap on all damages – including economic damages.

In the HBO documentary, a Nebraska boy was injured at birth. As a result of the negligence of an obstetrician, he is severely brain damaged and will require a lifetime of care. A lifetime of medical care alone will cost in excess of $5 million. The jury awarded $5.5 million. But because Nebraska maintained a $1.75 million cap on all damages, his family received only $1.75 million (much of which went to expenses and attorney fees). That means that taxpayers get stuck with the bill, rather than the wrongdoer.

Although some state courts have ruled that caps on noneconomic damages are unconstitutional, the Maryland Court of Appeals ruled as recently as 2010 that Maryland’s cap is constitutional.

Nevertheless, the policy negatively impacts the rights of catastrophically injured individuals. About 30 states have laws that limit damages in personal injury cases.

The Brassel, Alexander & Rice has significant experience representing those who have been catastrophically injured by the negligence of others. If you’ve been injured, call the Brassel, Alexander & Rice for a free consultation.

]]>540Surgeon operates on wrong eye of four-year-old boyhttps://www.marylandinjuryattorneysblog.com/2011/04/surgeon-operates-on-wrong-eye.html
Wed, 27 Apr 2011 11:09:15 +0000http://www.marylandinjuryattorneysblog.com/2011/04/surgeon-operates-on-wrong-eye.html
When four-year-old Jesse Matlock went in for surgery earlier this month in Portland, Oregon, his parents expected the doctor to help correct strabismus in his right eye, which in medical terms is a wandering eye. The surgeon, however, allegedly operated on the wrong eye, realized her mistake and then repeated the procedure on the correct eye – without telling the patient’s parents until the procedures were complete.

The boy’s parents were particularly upset that the doctor performed the second operation without informing the parents of her mistake until both procedures were complete. They learned of the issue when a nurse informed them that the doctor was operating on both eyes, without explaining why, the boy’s parents said.

The parents allege that the doctor eventually spoke with them and informed them that she lost her sense of direction because the mark she had made on the correct eye was covered up.

While the extent of Matlock’s injuries are unclear at this point, his parents have concerns that the unnecessary surgery may affect his sight in the future.

His parents indicate that they may consult an attorney – and they should.

One of the issues that must be considered, particularly in cases affecting minors, is when is the appropriate time to file suit where the extent of the injuries are uncertain. This issue is addressed by Annotated Code of Maryland, Courts & Judicial Proceedings § 5-109. In Maryland, the general rule is that an action for medical malpractice must be initiated within three years of the date the injury was discovered or five years from the time the injury was committed. The three-year rule is called the Statute of Limitations and the five-year rule is called the Statute of Repose.

For a child with similar injuries, however, the statute of limitations does not begin to run until he turns the age of 11. In other words, if this incident occurred in Maryland, Jesse’s parents would generally have until the time Jesse turned 14 to file a complaint against the doctor.

That is why the Statute of Limitations is an issue that must always be considered by attorneys representing plaintiffs. That is also why it always makes sense to contact an attorney as soon as an injury is discovered.

If you believe that you have been injured by a medical provider’s negligence, contact the Brassel, Alexander & Rice for a free consultation.